Office of the Attorney General
State of Texas

Re: Whether a hospital district is required to make its
facilities available for nontherapeutic abortions

Dear Representative Wright:

You ask whether the board of managers of the City of Amarillo
Hospital District (AHD) may adopt a policy of refusing to make
its facilities available for nontherapeutic abortions. We
believe such a policy violates the United States Constitution in
certain instances. The AHD was created by chapter 136, Acts
1957, 55th Legislature, Regular Session under authority of
article IX, section 5, of the Texas Constitution. The pertinent
constitutional provision authorizes the creation of a hospital
district "to be coextensive with and have the same boundaries as
the incorporated city of Amarillo as such boundaries now exist or
as they may hereafter be lawfully extended." [FN1] Tex. Const.
art. XI, s 5(a).

The district's enabling statute describes the district's
purpose as "owning and operating a hospital or hospital system
for indigent and needy persons...." Acts 1957, 55th Leg., ch.
136, s 1, at 298. Various provisions of the act provide for a
Board of Hospital Managers to be appointed by the governing body
of the city of Amarillo; for the board to contract with other
counties and incorporated cities for the care and treatment of
their residents; for the board to promulgate rules and
regulations for the operation of the hospital; and for the
transfer of ownership to the AHD of lands, buildings, and
equipment that is situated in the district that was owned by the
city of Amarillo or Potter County and used to furnish medical
services or hospital care to indigents or needy persons by those
two entities. Id. at ss 4, 5.

The enabling statute was amended by chapter 439, Acts of the
64th Legislature, Regular Session, 1975 to allow the city
governing body and the board to fix and collect charges for the
occupancy and use of any of the hospital facilities and services
in the amount and manner determined by the board. See Acts 1975,
64th Leg., ch. 439, s 3A(g), at 1178, 1179-80. The hospital
administrator determines a patient's ability to pay for services.
See Acts 1957, 55th Leg., ch. 136, s 14, at 298, 304.

You tell us that the AHD operates Northwest Texas Hospital, a
general public hospital. It is in the public hospital that
nontherapeutic abortions would be prohibited. [FN2] Generally, a
hospital district's power and any limitations on the exercise of
that power are found in the constitution and the hospital
district's enabling statute. Attorney General Opinion M-171
(1967). Special purpose districts have only the authority which
is clearly granted by the legislature. Tri-City Fresh Water
Supply District No. 2 of Harris County v. Mann, 142 S.W.2d 945
(Tex.1940). See Attorney General Opinion Nos. JM-258, JM-257
(1984).

In 1985, the state constitution was amended to include article
IX, section 9A, which allows the legislature to determine the
health care services a hospital district is required to provide.
No legislation has been enacted pursuant to the amendment. The
Indigent Health Care and Treatment Act, article 4438f, V.T.C.S.,
was also enacted in 1985. This act expressly exempts hospital
districts from the mandatory services provision required under
section 11.01(d) of the act.

Section 11.02 of the Indigent Health Care Act provides:

A hospital district shall provide the health care services
required under the Texas Constitution and the statute creating
the district.

Neither article IX, section 5, of the constitution, nor the
district's enabling statute specifies the medical services to be
provided. Both provisions speak in general terms about the
provision of medical aid and hospital care. Therefore, absent
subsequent legislative enactment, a hospital district may
generally determine which services it will provide.

On the issue of abortion, however, the AHD must be guided by
federal law. The United States Supreme Court invalidated the
Texas laws concerning abortion in Roe v. Wade, 410 U.S. 113
(1973). See also Doe v. Belton, 410 U.S. 179 (1973). Roe
established that the constitutional right of privacy encompasses
a woman's decision whether or not to terminate her pregnancy.
See id. at 153. A state must demonstrate a compelling interest
when restricting a fundamental right. Id. at 155. The court
held that the state has no compelling interest during the first
trimester of pregnancy and that the decision to abort during that
period must be free of interference by the state. Id. at 163.
The privacy right involved in the abortion decision is not
absolute. Id. at 154. The court found state regulation of
abortions during the second trimester appropriate to the extent
that the regulation relates to the preservation and protection of
the mother's health. Id. at 163. The state's compelling
interest in protecting potential life was found to exist from the
point of viability of the fetus. Id. This interest, according
to Roe, allows the state to proscribe abortion during the third
trimester, except when it is necessary to preserve the life or
health of the mother. Id. at 164.

Ten years after the Roe decision, the Court reaffirmed its rule
of non-interference by the state in the first trimester abortion
decision and the requirement of a compelling state interest for
restricting or prohibiting abortions at later stages of
pregnancy. City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983). Speaking for the majority,
Justice Powell wrote:

These cases come to us a decade after we held in Roe v. Wade
[citation omitted] that the right of privacy, grounded in the
concept of personal liberty guaranteed by the Constitution,
encompasses a woman's right to decide whether to terminate her
pregnancy. Legislative responses to the Court's decision have
required us on several occasions, and again today, to define the
limits of a State's authority to regulate the performance of
abortions. And arguments continue to be made, in these cases as
well, that we erred in interpreting the Constitution.
Nonetheless, the doctrine of stare decisis, while perhaps never
entirely persuasive on a constitutional question, is a doctrine
that demands respect in a society governed by the rule of law.
We respect it today, and reaffirm Roe v. Wade.

Id. at 419-20.

Shortly after Roe v. Wade was decided, this office issued
Attorney General Opinion H-369 (1974), a lengthy opinion on the
status of state abortion laws and the permissibility of certain
abortion regulations. One of the questions discussed in that
opinion was whether a hospital may refuse to permit the
performance of an abortion. The opinion traced the judicially
drawn distinction between public and private hospitals on this
issue and concluded that public hospitals may not refuse to
perform abortions unless other similar medical procedures are
likewise prohibited. [FN3]

Judicial decisions rendered after Attorney General Opinion H-369 support this conclusion with one limitation. The United
States Supreme Court upheld a public hospital's refusal to
provide a nontherapeutic abortion to an indigent patient in
Poelker v. Doe, 432 U.S. 519, reh'g denied, 434 U.S. 880 (1977).
Poelker reiterated the Supreme Court's position in Maher v. Roe,
432 U.S. 464 (1977) that public funding for abortions is not
constitutionally required. The Supreme Court has not ruled
directly on the question of a public hospital's refusal to
provide nontherapeutic abortions to paying patients. However,
there have been cases in other jurisdictions on this precise
question.

However, the conscience clause cannot constitutionally permit
'public' hospitals ('state actors'), to refuse to permit the
performance of abortions for 'ethical' reasons. Such permission
would circumvent, if not directly contravene, Roe, supra,
[citation omitted], which permits the state to interfere with the
woman's abortion decision only in the second trimester, and then
only to protect maternal health, and in the post-viability stage,
to protect maternal health and fetal life. The conscience
clause, as applied to public hospitals, unconstitutionally
interferes with the woman's constitutional right to abortion by
permitting public hospitals to proscribe first trimester
abortions and to proscribe second trimester abortions on grounds
broader than 'maternal health.' [Citations omitted.]

541 F.2d at 527. A similar conscience clause was stricken in
Minnesota insofar as it applied to public facilities. Hodgson v.
Lawson, 542 F.2d 1350 (8th Cir.1976).

In Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638
(4th Cir.1975) the court held unconstitutional a private
hospital's policy of refusing to perform nontherapeutic
abortions. The Charleston court found the requisite "state
action" in the fact that the hospital policy was formulated in
order to comply with a West Virginia criminal abortion statute.

In August, 1973, seven months after Roe v. Wade, supra, an
injunction was obtained in federal district court in Minnesota to
compel a municipal hospital commission to provide its facilities
for the performance of abortions and to allow physicians to
perform abortions at their discretion in accordance with Roe v.
Wade and Doe v. Bolton. The hospital had adopted a resolution
proscribing abortions except when necessary to save the life of
the mother. Nyberg v. City of Virginia, Minnesota, 361 F.Supp.
932 (D.Minn.1973), aff'd, 495 F.2d 1342 (8th Cir.1974), appeal
dism'd, 419 U.S. 891 (1974) [hereinafter Nyberg I]. In 1980 the
city of Virginia sought unsuccessfully to vacate the Nyberg I
injunction. Nyberg v. City of Virginia, 667 F.2d 754 (8th
Cir.1982), appeal dism'd, 462 U.S. 1125 (1983) [hereinafter
Nyberg II]. The city relied on Maher v. Roe, supra, Poelker v.
Doe, supra, and other Supreme Court decisions issued subsequent
to Nyberg I in seeking relief from the seven year injunction.
The Nyberg II court refused to vacate the injunction, reasoning
that the cases relied on dealt with the issue of abortion
funding. The hospital resolution found constitutionally
offensive in Nyberg I applied to indigents and nonindigents
alike. Nyberg II distinguished the Nyberg I requirement that a
public hospital make its facilities available for the performance
of abortions by staff physicians from the cases in which the
availability of direct public expenditures was at issue.

In Poelker, the Supreme Court determined that a city hospital
was not required to spend public funds to hire doctors who would
perform abortions or otherwise provide publicly financed hospital
services for indigent women.

There is a fundamental difference between providing direct
funding to effect the abortion decision and allowing staff
physicians to perform abortions at an existing publicly owned
hospital. While it is true public money may have been used to
build the hospital, that capital expenditure was to provide
facilities for a large number of operations, of which first
trimester abortions was but one. The decision that a city must
allow staff physicians to perform abortions at the sole community
hospital is far removed from those decisions which do not require
direct public expenditure to facilitate abortions. (Emphasis in
original.)

667 F.2d at 758.

The Fifth Circuit was confronted with the issue of a hospital's
policy to prohibit elective abortions in Greco v. Orange Memorial
Hospital Corporation, 513 F.2d 873 (5th Cir.), cert. denied, 423
U.S. 1000 (1975). The Greco court determined that the hospital
was private, that there was no state action involved in the
abortion policy, and that the circumstances did not warrant
"imposition of constitutional restrictions upon Orange Memorial
Hospital." 513 F.2d at 882. The appellate panel did not
expressly state that a different result would have been reached
upon a finding that the hospital was public; however, the
decision strongly implies this conclusion. Moreover, express
language to this effect is found in the district court's ruling
on this matter. Greco v. Orange Memorial Hospital Corporation,
374 F.Supp. 227 (E.D.Tex.1974). Judge Steger, in dismissing the
complaint, wrote:

Therefore, this Court is in accord with the reasoning of
recent decisions that a private hospital, whether denominational
or not, is free to decide the elective abortion question for
itself. On the other hand, a purely public hospital, such as the
one involved in Hathaway v. Worcester City Hospital, could not
prohibit elective abortions if it had the available space and
personnel and performed other surgical procedures involving no
greater risk to the patient.

374 F.Supp. at 233.

The most recently reported federal decision discussing the
issue of a ban on abortions in public facilities is Reproductive
Health Services v. Webster, 655 F.Supp. 1300 (W.D.Mo.1987). The
court invalidated several provisions of a Missouri statute,
including one which made it unlawful

for any public facility to be used for the purpose of
performing or assisting an abortion not necessary to save the
life of the mother or for the purpose of encouraging or
counseling a woman to have an abortion not necessary to save her
life.

655 F.Supp. at 1316, n. 47. Discounting the defendant's reliance
on earlier Supreme Court abortion funding cases, the district
court held that Poelker v. Doe, supra, was not controlling. The
Missouri statute at issue in Webster would prohibit the use of
public facilities for all nontherapeutic abortions, regardless of
the patients' ability to pay. Webster cited Nyberg II, supra, to
support its conclusion that direct funding may be disallowed but
use of public facilities may not be prohibited.

In our opinion, the relevant federal cases on abortion may be
summarized as follows:

1. state interference with first trimester abortions is
unconstitutional;

2. second trimester restrictions must be based on an interest
in the mother's health;

3. third trimester abortions of viable fetuses may be
prohibited except to protect the life or health of the mother;

4. public funding of abortions is not constitutionally
required; and

5. public facilities may not refuse to allow the use of their
facilities for the performance of abortions for paying patients,
if similar medical procedures are performed there.

It is our opinion, therefore, that the AHD may not adopt a
policy that would prohibit the use of its public hospital for the
performance of nontherapeutic abortions for paying patients.
Neither state nor federal law requires the AHD to fund
nontherapeutic abortions.

SUMMARY

Absent specific legislation, the Board of Managers of the
City of Amarillo Hospital District may generally determine which
medical services it will provide. The board may not adopt a
policy to refuse to make its public hospital available for the
performance of nontherapeutic first and second trimester
abortions for paying patients. Neither state nor federal law
requires the City of Amarillo Hospital District to fund
nontherapeutic abortions.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman
Opinion Committee

Prepared by
Karen C. Gladney
Assistant Attorney General

Footnotes

FN1. A proposed amendment to article IX, section 5 will appear on
the ballot at the November 3, 1987 constitutional amendment
election. If adopted, the amendment authorizes the legislature
to expand the service area of the AHD to include certain
residents of Randall County and to permit Randall County to
provide financial assistance to the district.

FN2. The discussion in this opinion is limited to first and
second trimester abortions. House Bill No. 410 enacted by the
70th Legislature took effect on September 1, 1987. The bill
prohibits the abortion of a viable fetus during the third
trimester except to prevent the death or serious impairment of
physical or mental health of the mother or because the fetus has
been diagnosed as having a severe, irreversible abnormality. See
Acts 1987, 70th Leg., ch. 469, at 4100.

FN3. For purposes of this opinion, we assume that Northwest Texas
Hospital does perform other medically similar procedures.